Albert Perhach v. Option One Mortgage Corp.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13840 ELEVENTH CIRCUIT
JUNE 15, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-60637-CV-CMA
ALBERT PERHACH,
Plaintiff-Appellant,
versus
OPTION ONE MORTGAGE CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 15, 2010)
Before TJOFLAT, EDMONDSON and MARTIN, Circuit Judges.
PER CURIAM:
Albert Perhach, appearing pro se, challenges the district court’s denial of his
motion for relief from its order compelling arbitration and his motion to vacate the
arbitrator’s award in his suit against his former employer, Option One Mortgage
Corporation (“Option One”), for breach of contract, fraud, and employment
discrimination in violation of the Age Discrimination in Employment Act, 29
U.S.C. § 623(a). After filing suit against Option One in federal court, Option One
moved the district court to stay proceedings and compel Perhach to file a petition
for arbitration pursuant to a Mutual Agreement to Arbitrate Claims (“Arbitration
Agreement”) signed by Perhach as a condition of his employment with Option
One. The district court granted Option One’s motion, and the parties arbitrated
their dispute. The arbitrator granted summary judgment in favor of Option One on
all of Perhach’s claims, and Perhach moved the district court to do two things: (1)
“vacate” its prior order compelling arbitration and (2) vacate the arbitrator’s award.
The district court submitted the matter to a magistrate judge who recommended
denying Perhach’s motions. Perhach did not file timely objections to the
magistrate judge’s report; consequently, the district court adopted the report and
the magistrate judge’s recommendation, denying Perhach’s motions. Perhach now
appeals.
I. Whether the district court plainly erred in denying Perhach’s pro se
motion for relief from the district court’s order compelling arbitration
Appearing pro se on appeal, Perhach’s brief does not include an argument
2
section. Nonetheless, Perhach asserts in his statement of jurisdiction that the
district court abused its discretion by compelling arbitration because he was
coerced into signing the Arbitration Agreement. Perhach explains that he was
coerced into signing the agreement because it was a condition of employment and
failure to sign it would have resulted in his immediate termination. He urges us to
reverse the district court’s order compelling arbitration and remand for further
proceedings. To his brief, Perhach attaches the Arbitration Agreement, his
employment offer letter, the arbitrator’s final response letter, a Texas arbitration
case, and a news article from 2007 regarding an arbitration case in the Ninth
Circuit Court of Appeals.
Typically, we review de novo a district court’s order compelling arbitration.
Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1368 n.6 (11th Cir. 2005).
However, Perhach did not appeal directly the court’s order compelling arbitration,
but rather, he appeals the denial of his motion to “vacate” the court’s order
compelling arbitration. Perhach’s pro se “motion to vacate” the court’s prior order
is akin to a motion for relief from an order under Rule 60(b)(6). See Fed. R. Civ.
P. 60(b)(6) (“On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for . . . (6) any other
reason that justifies relief.”). Generally, we review a district court’s order on a
3
Rule 60(b) motion for an abuse of discretion. Willard v. Fairfield Southern Co.,
Inc., 472 F.3d 817, 821 (11th Cir. 2006). However, when a magistrate judge issues
a report and notifies the parties of the consequences of failing to object to the
report, “and a party still fails to object to the findings of fact and those findings are
adopted by the district court the party may not challenge them on appeal in the
absence of plain error or manifest injustice.” Resolution Trust Corp. v. Hallmark
Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993). “In order to satisfy this
extremely stringent form of review, the party must establish that (1) an error
occurred; (2) the error was plain; (3) the error affected substantial rights; and (4)
not correcting the error would seriously affect the fairness of the judicial
proceeding.” Wilbur v. Correctional Services Corp., 393 F.3d 1192, 1204 n.6
(11th Cir. 2004) (quotations omitted). We will reverse for plain error in a civil
case only in exceptional cases where the error is “so fundamental as to result in a
miscarriage of justice.” Montgomery v. Noga, 168 F.3d 1282, 1294 (11 th Cir.
1999).
“Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys and will, therefore, be liberally construed.” Boxer X v. Harris, 437
F.3d 1107, 1110 (11th Cir. 2006). Issues not briefed on appeal by a pro se litigant
are deemed abandoned. Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir.
4
2002). Additionally, we do not address arguments raised for the first time, in a pro
se litigant’s reply brief. Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003).
Moreover, “[b]y well settled convention, appellate courts generally will not
consider an issue or theory that was not raised in the district court.” F.D.I.C. v.
Verex Assur., Inc., 3 F.3d 391, 395 (11th Cir. 1993).
Statutory claims may be subject to an enforceable arbitration agreement,
pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., unless
Congress intended to preclude a waiver of judicial remedies to enforce the
statutory rights at issue. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26,
111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991) (holding that the FAA applies to
claims under the ADEA).
A party aggrieved by the alleged failure, neglect, or refusal of another
to arbitrate under a written agreement for arbitration may petition any
United States district court . . . for an order directing that such
arbitration proceed in the manner provided for in such agreement. . . .
The court shall hear the parties, and upon being satisfied that the
making of the agreement for arbitration or the failure to comply
therewith is not in issue, the court shall make an order directing the
parties to proceed to arbitration in accordance with the terms of the
agreement.
9 U.S.C. § 4 (emphasis added). “Furthermore, under the FAA, arbitration
agreements are ‘valid, irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of the contract.’” Caley, 428 F.3d at
5
1367, citing 9 U.S.C. § 2. “Mere inequality in bargaining power, however, is not a
sufficient reason to hold that arbitration agreements are never enforceable in the
employment context.” Gilmer, 500 U.S. at 33, 111 S.Ct. at 1655. When a court is
faced with a motion to compel arbitration, it must determine whether the parties
agreed to arbitrate the dispute, and it “make[s] this determination by applying the
federal substantive law of arbitrability, applicable to any arbitration agreement
within the coverage of the Act.” Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353, 87 L.Ed.2d
444 (1985) (quotations and citation omitted).
Here, Perhach did not file a timely objection to the magistrate judge’s
report, and therefore we review any challenged factual findings for plain error.
Contrary to Perhach’s assertions, arbitration agreements are not coercive simply
because an employer requires them as a condition of employment, and as the FAA
provides, the district court shall compel arbitration once it has determined that the
parties agreed to arbitrate the dispute. In this case, Perhach admitted to signing the
Arbitration Agreement, which provided that Option One and Perhach “mutually
consent to the resolution by arbitration of all claims or controversies (“claims”),
past, present or future, whether or not arising out of my employment (or its
termination), that the Company may have against me or that I may have against the
6
Company.” Given that Perhach’s coercion argument is based solely on the premise
that he would have been fired had he not signed the Arbitration Agreement, he fails
to demonstrate any error as a matter of law, much less plain error.
II. Whether the district court erred in denying plaintiff’s pro se motion to
vacate the final order of arbitration
Perhach also challenges the district court’s denial of his motion to vacate the
final order of arbitration, arguing that the arbitrator failed to recognize that he was
coerced into signing the Arbitration Agreement, and the arbitrator did not provide
him the opportunity to present evidence. Specifically, Perhach asserts that the
arbitrator told him to “keep his evidence” for a hearing that never transpired.
“On an appeal of a district court’s decision to confirm or vacate an
arbitration award, we review the district court’s resolution of questions of law de
novo and its findings of fact for clear error.” Rintin Corp., S.A. v. Domar, Ltd., 476
F.3d 1254, 1258 (11th Cir. 2007). As stated above, when a party fails to object to
a magistrate’s report, we review any challenged factual findings for plain error.
See Resolution Trust Corp., 996 F.2d at 1149.
The FAA provides four statutory grounds for vacating an arbitration award:
(1) where the award was procured by corruption, fraud, or undue
means;
(2) where there was evident partiality or corruption in the arbitrators,
or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to
7
postpone the hearing, upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the controversy; or of any
other misbehavior by which the rights of any party have been
prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly
executed them that a mutual, final, and definite award upon the
subject matter submitted was not made.
9 U.S.C. § 10(a). Additionally, we have recognized three non-statutory grounds
for vacating an arbitration award. B.L. Harbert Intern., LLC v. Hercules Steel Co.,
441 F.3d 905, 910 (11th Cir. 2006). “An award may be vacated if it is arbitrary
and capricious, if enforcement of the award is contrary to public policy, or if the
award was made in manifest disregard for the law.” Id. (internal citations omitted).
Moreover, we have held that “a mere difference of opinion between the arbitrators
and the moving party as to the correct resolution of a procedural problem will not
support vacatur under section 10(a)(3).” See Scott v. Prudential Securities, Inc.,
141 F.3d 1007, 1016 (11th Cir. 1998) (affirming district court’s denial of motion to
vacate an arbitration award because the appellant’s allegations amounted “to
precisely the vague, remote, and speculative charges that we have held cannot
support an order to vacate an arbitration award”). The “arbitrator need not
consider all the evidence the parties seek to introduce but may reject evidence that
is cumulative or irrelevant.” Id. at 1017. In Scott, we also stated that “the FAA
permits arbitration to proceed with only a summary hearing and with restricted
8
inquiry into factual issues . . . the arbitrator need only give each party the
opportunity to present its arguments and evidence.” Id. (quotations and internal
alterations omitted).
Here, Perhach failed to object to the magistrate judge’s findings that the
arbitrator gave him the opportunity to file evidence and considered the evidence
that Perhach submitted, and therefore, we review the challenged factual findings
for plain error. While Perhach’s argument falls under one of the enumerated
statutory grounds for vacating an arbitration order, i.e., that the arbitrator refused to
hear evidence pertinent and material to the controversy, Perhach’s vague challenge
to the arbitration process fails to satisfy the plain error standard. Even though
Perhach had the opportunity to submit evidence, he chose not to present witnesses
and does not specify what evidence the arbitrator failed to consider. Accordingly,
we discern no reversible error.
AFFIRMED.
9